Cablegate: Additional Questions From Japan Regarding The

VZCZCXYZ0013
OO RUEHWEB

DE RUEHKO #5904/01 2840833
ZNR UUUUU ZZH
O 110833Z OCT 06
FM AMEMBASSY TOKYO
TO RUEHC/SECSTATE WASHDC IMMEDIATE 7304
INFO RUEHMO/AMEMBASSY MOSCOW PRIORITY 1282
RUEHFR/AMEMBASSY PARIS PRIORITY 5064
RUEHUNV/USMISSION UNVIE VIENNA PRIORITY 0408

UNCLAS TOKYO 005904

SIPDIS

SIPDIS

E.O. 12958: N/A
TAGS: KNNP MCAP PINR PINS IAEA FR
SUBJECT: ADDITIONAL QUESTIONS FROM JAPAN REGARDING THE
GLOBAL INITIATIVE

REF: SECSTATE 164535

1. THIS IS AN ACTION MESSAGE. SEE PARAGRAPHS 4-6.

2. SUMMARY: Russian Embassy Political Officer Sergey I.
Kuznetsov and American Embassy Science and Technology Officer
Ayanna Hobbs met with Japanese counterparts at MOFA on 2
October, and hand-delivered answers provided by Washington
(reftel) on Japan's initial questions. Russian Embassy
Officer read off similar answers provided by Russian
authorities. MOFA reiterated Japan's continued support of
the Initiative. However, MOFA made clear that any statement
the GOJ endorses will have to be reviewed by other agencies,
and this will take time. If such a review is not possible,
Japan will attend the first meeting in Morocco, but may only
participate as an observer It will not be able to endorse the
documents until further review by all participating Japanese
government agencies.
END SUMMARY

3.BEGIN TEXT of MOFA COMMENTS AND QUESTIONS. We understand
that the Russian Federation and the United States expect that
the Initial Partners will endorse Statement of Principles and
possibly Terms of Reference, but not Explanatory Notes to
Statement of Principles, at the meetings on 30-31 October
2006. Given the importance and concreteness of their
contents, coordination and elaboration might be required to
come up with agreed explanatory notes. Japan will continue to
cooperate with Russia and the US in this regard.

4. Statement of Principles:

A. Description on National Laws and Regulations Throughout
the text of Statement of Principles slightly different
wording is used in referring to national legal framework. For
the sake of consistency and greater clarity, we would suggest
that relevant parts of the text read as follows:

Introductory Part (3rd line): consistent with their relevant
laws and regulations (instead of consistent with national
legal authorities)

4th bullet (3rd line): consistent with their relevant laws
and regulations (instead of consistent with relevant laws)

8th bullet (3rd and 4th lines): consistent with their
relevant laws and regulations (instead of consistent with
their national law)

(In the 7th bullet, the phrase national legal and regulatory
frameworks could remain as is now, if it refers to frameworks
as a whole rather than to individual laws or regulations.)

B. 3rd Objective
With regard to the phrase prevent illicit trafficking in
them, we would appreciate clarification on what in them
refers to. Could this part read: prevent their illicit
trafficking? With respect to the phrase to include
cooperation...in this initiative, could we understand that it
means as follows: (in order) to research and develop, in a
cooperative manner, an interoperable detection capability
open to all who participate in this initiative.

5. Terms of Reference for Implementation and Assessment:

A. Use of Shall
Japan proposes that the word shall throughout the text be
replaced by other appropriate words (such as will) so as to
clarify the non-legally binding nature of the document.

B. Scope of Activities, 2nd bullet
What is the point to refer to evaluate requests (to fill
capability gaps)? Reference to the possibility to provide
assistance seems to cover the main point on this matter.

C. Responsibilities of Initiative Participants, paragraph 2
With regard to the phrase will ensure that appropriate
personnel and resources are dedicated..., we would appreciate
your clarification on whether this part requests
participating states to establish an organizational unit or
task-force consisting of experts from various ministries and
departments to be involved in GI activities or to take
measures so that each relevant ministries and departments
duly dedicate their personnel and resources for GI
activities. We understand that the latter is the intention of
this paragraph and propose that this paragraph be slightly
modified to read as follows:

Participants will strive to ensure that appropriate personnel
and resources are dedicated to the implementation of the
Initiative and that operational and technical experts from
ministries and departments with appropriate operational
and technical expertise (e.g. Defense, Energy,
Interior/Homeland Security,
Finance, Justice, etc.) participate in Initiative activities
identified in the Plan of Work, in consultation with the
host nation.

D. Responsibilities of Initiative Participants, paragraph 3
Given that a schedule of technical meetings and operational
training exercises in the future is unknown at this stage, it
is difficult for many countries, including Japan, to make a
statement to ensure adequate provision of resources to
support such activities. Therefore, Japan would propose that
this paragraph be slightly modified read as follows:

Participants will provide political support within their
governments to the activities of the operational and
technical experts, and strive to provide appropriate
resources to support an active schedule of technical meetings
and operational training exercises.

E. Responsibilities of Initiative Participants. Paragraph 4
How many contact points are expected to be designated? Do you
expect a single contact point (e.g. an official of the
Foreign Ministry) who will coordinate all of the work within
his/her country? Alternatively, do you envisage eight contact
points who will take care of the eight objectives mentioned
in the Statement of Principles?

6. Explanatory notes to Statement of Principles:

A. Objective 1
8.1 Activities
To make recommendations to other partner nations regarding
best practices is regarded as one of the main activities
under this objective. While best practices of a country
might be useful for others, it is not appropriate to directly
apply practices of a country in other countries, because
appropriate physical protection systems should differ
depending on the assumptions of threats, specificity of
facilities and other conditions. We would like to know your
views on this point.

8.2. Authorities
In this paragraph, partner states are requested to maintain
capabilities in a manner that meets or exceeds any legal
requirements. However, the phrase exceeds any legal
requirements sounds too strong and may not be necessarily
appropriate given the intention of this paragraph. We propose
that this part read as follows:

All partner nations will maintain these capabilities in a
manner that meets the legal requirements established by...
and will strive to strengthen such capabilities further.

B. Objective 2
9.1. Activities
(same comments as mentioned in 8.1. above)

9.2. Authorities
(same comments as mentioned in 8.2. above)

C. Objective 3
10.1. Goal
In this paragraph, partner nations are requested to maintain
a capability to detect the illicit movement of nuclear
material and radioactive substances, across all borders,
ports, and airports. Does this capability purport only to
technical capability within the present domestic legal
framework or include legal capabilities beyond the existing
domestic legal framework to detect and prevent illicit
movement of nuclear material (for example, granting
additional power to regulate it to Authority or even
establishing new punishment clause to assure its enforcement)?

1 0.2. Authorities
(same comments as mentioned in 8.2. above)

D. Objective 4
11.1. Title
The title of this objective reads: improve capabilities of
partner nations to search for, seize. Does the word improve
capabilities mean the improvement only of technical
capabilities of search and seizure within the present
domestic legal framework or include the establishment of new
legal framework of search and seizure beyond the existing

domestic legal framework (for example, amending the domestic
legal framework to give a special power to authorities
regarding search and seizure or to change the requirements of
court issuance of warrant for search and seizure)?

11.2. Authorities
(same comments as mentioned in 8.2. above)

E. Objective 5
12.1 Title
The title of this objective reads: improve capabilities for
--- investigation. Does the word improve capabilities mean
the improvement of technical capabilities within the present
domestic legal framework or include the improvement of legal
capabilities (for example, introducing new methods of
investigation including sting operation)?

12.2 Goal
In this paragraph, partner nations that receive requests for
assistance are requested to provide appropriate operational
and technical assistance to ---- ensure just punishment of
those responsible. In this context, does the word assistance
mean the practice of seminars and workshops to improve the
technical capabilities of investigators regardless of the
ongoing investigation of concrete cases, or include mutual
legal assistance in criminal matters related to the ongoing
investigation of concrete cases.

Partner nations are also requested to maintain capability ---
to identify all perpetrators and facilitators. In this
connection, does this capability include a legal capability
to identify perpetrators and facilitators (for example,
introducing new legal methods of investigation beyond the
present domestic legal framework)?

Partner nations are also requested to maintain a means to
share operational and technical information. What kind of
concrete information is supposed to be shared? Does this
include information on the ongoing investigation?

12.3. Authorities
(same comments as mentioned in 8.2. above)

F. Objective 6
13.1. Goal
In this paragraph, partner nations are requested to maintain
capability to deny financial and economic resources to
persons and entities reasonably believed to be seeking to
carry out or facilitate a terrorist attack involving nuclear
materials or radioactive substances as well as to maintain a
capability to identify all suspicious activity related to
terrorist efforts to acquire or use nuclear materials, or
carry out acts of sabotage. What kind of concrete
capabilities are envisaged here? Would they include the
establishment of such legal measures that authorities
maintain the power to grant permission on the matter in order
to prohibit or prevent the provision of funds to terrorists,
or of the additional legal power for authorities, or of the
new legal instrument for punishment to assure effective
enforcement?

13.2. Authorities
(same comments as mentioned in 8.2. above)

G. Objective 7
14.1. Goal
In this paragraph partner nations are requested to establish
a firm basis for operational, technical, law enforcement, and
other forms of concrete cooperation with partner nations on
all aspects of the Statement of Principles. In this
connection, we would like to know whether (a) you assume a
new legal framework beyond existing one including the
Convention on the Physical Protection for Nuclear Material
and Facilities, the Nuclear Terrorism Convention, United
Nations Security Council Resolution 1373 and 1540, or (b) you
expect those countries who have not met the existing legal
obligations to establish such legal framework to enhance
their capacity building and expect those countries with such
framework to assist those countries without such framework to
implement this initiative in a smooth manner within the
existing legal framework. We would like you to clarify your
intention regarding these points.

If you have option (a) above in mind, we would like you to
explain the new legal framework that is to be established,
so that we can consider it. In relation to the wording of the
explanatory notes, at this stage we would like this part to
read: establish, if appropriate (or necessary), a firm basis.

In case you have option (b) above in mind, we would propose

that this part read: like to ask you to change the phrase
establish a firm basis for operational, technical, law
enforcement, and other forms of concrete cooperation with
partner nations on all aspects of the Statement of
Principles, a firm legal basis consistent with the Convention
on the Physical Protection for Nuclear Material and
Facilities, the Nuclear Terrorism Convention, and United
Nations Security Council Resolutions 1373 and 1540.

We would like to know your views on the arrangements for the
proper handling of evidence. If you think that participating
countries should provide evidence beyond the existing legal
frameworks, such as the Treaty between Japan and the United
States of America on Mutual Legal Assistance in Criminal
Matters, we need to consider carefully, in terms of its
necessity and rationality, whether such arrangements could be
accepted. Therefore, at this stage, we propose that this
part read: including, if appropriate (or necessary), the
arrangements for the proper handling of evidence or including
the arrangements for the proper handling of evidence
consistent with the existing international legal frameworks
including the Convention on the Physical Protection for
Nuclear Material and Facilities, the Nuclear Terrorism
Convention, and United Nations Security Council Resolutions
1373 and 1540.

In relation to the phrase through long jail terms, we would
like to point out that long jail terms is a relative concept
and heavily depends on domestic law of each country. For
example, Article 6 of the Nuclear Terrorism Convention
stipulates that criminal acts shall be punished by penalties
consistent with their grave nature, but does not specify jail
terms. Moreover, in criminal cases, a court has its own
exclusive authority to determine a reasonable sentencing
within the statutory penalty. We doubt whether court's
decisions will be subject to long jail terms in all cases.
Therefore we would propose that this part read, for example:
through criminal penalties consistent with grave nature,
according to the article 6 on the Nuclear Terrorism
Convention.

In relation to the phrase and civil or administrative
penalties following long jail terms, we would like you to
know that in Japan the person imposed on a criminal penalty
shall be imposed on neither a civil nor an administrative
penalty without specific provisions such as disqualification
causes in other individual laws. We would therefore request
that this part read: and, if possible, civil or
administrative penalties.

14.2. Activities
In this paragraph, partner nations are requested to review,
ensure the effectiveness of, and strengthen on a continuous
basis national legal and regulatory frameworks necessary to
implement the Statement of Principles. While we understand
your point, we think that the following formulation would
sound more appropriate: will review, ensure the effectiveness
of, and, if necessary, strengthen on a continuous basis the
national legal and regulatory frameworks...

14.3. Authorities
(same comments as mentioned in 8.2. above)

H. Objective 8
15.1. Goal
In this paragraph, partner nations are requested to maintain
points of contact for sharing operational, technical, law
enforcement information. However, in the paragraph under
Activities, the rapid exchange only of technical and
operational information is referred to and there is no
mention of law enforcement information. We would like to
know the reason of this inconsistency. We would also like to
know the contents of operational information, technical
information and law enforcement information and whether such
information includes that related to ongoing investigation.

15.2. Authorities
(same comments as mentioned in 8.2. above) END TEXT

7. Japanese participants included members MOFA's
International Nuclear Energy Cooperation Division:

1) Principal Deputy Director Zentaro Naganuma
2) Deputy Director Takayuki Kitagawa (NOTE: Mr. Kitagawa has
been re-assigned as of 2 October)
3) Officer Toshio Kaneko

SCHIEFFER
SCHIEFFER

© Scoop Media